Understanding Bias: The UNC SOG Educational Video For Jurors
In September 2018, legendary attorney Jeffery Robinson visited the University of North Carolina School of Government to present his innovative approach to addressing juror bias to a network of North Carolina attorneys.1 His was the keynote presentation at the 12th daylong training for members of the North Carolina Racial Equity Network (NC REN), a community of attorneys dedicated to seeking racial equity in their cases and communities. While serving as project attorney within the UNC School of Government’s Public Defense Education Group, I had the privilege of leading this remarkable community of advocates. I had rarely seen them as rapt and energized as they were during this presentation.
Robinson, a gifted storyteller and passionate advocate, spoke about the pernicious impact of juror bias and the difficulty of addressing it.2 He recognized that people accused of a crime often must confront not only the evidence presented against them, but the stereotypes that follow them into the courtroom. Robinson observed that, during jury selection, potential jurors often try to say “the right thing” rather than reveal their actual perspectives, and he shared strategies for encouraging jurors to disclose biases relevant to their ability to be fair and impartial decision-makers in the case before them.
In addition to uncovering biases that jurors are aware of, he stressed that lawyers should be mindful of implicit or unconscious biases: those instantaneous associations our minds make between various categories, whether we know it or not.3 As part of Robinson’s presentation, he screened the Unconscious Bias Juror Video (“the WDWA video”), a juror education tool featuring and designed by court actors in the U.S. District Court for the Western District of Washington, including Robinson himself.4 The WDWA video defines, in simple terms, the concept of unconscious bias, and instructs jurors to guard against its influence as they hear evidence, deliberate and reach a verdict. Robinson’s screening of the WDWA video planted a seed that, as I’ll describe below, eventually led to the creation of Understanding and Countering Bias, North Carolina’s own homegrown bias education video for jurors.5
Over the last few decades, researchers have revolutionized our understanding of the prevalence and nature of implicit bias.6 Implicit bias generally refers to those instantaneous associations or “mental shortcuts” that our minds make between categories when processing information. In public discourse, the terms “implicit bias” and “unconscious bias” are used interchangeably to describe “an attitude, stereotype, or prejudice that a person is unaware of possessing but which may operate automatically to influence thinking or behavior.”7
Across all sectors of society, people have reckoned with the many ways in which implicit biases may distort decision-making, especially when those biases relate to socially salient categories like race, ethnicity and gender. For example, a large body of research confirms that our history of discriminating against and dehumanizing Black Americans lives on in our automatic associations, with devastating effects.8 An analysis of millions of implicit association test results establishes that a “significant majority of Whites as well as Asian Americans and Latinos show anti-Black bias … and almost half of African Americans also show anti-Black bias.”9 While behavior motivated by implicit biases at times may be unintentional, the results can be devastating, exacerbating racialized outcomes for marginalized groups in health care, educational and legal systems, to name a few.10
Recognition of Impact on Legal System
Many in the legal system have recognized the importance of educating jurors about the phenomenon and consequences of implicit bias, an especially thorny problem when it comes to ensuring the fair and impartial administration of justice.11 Researchers, lawyers and judges have developed innovative approaches to educating jurors about the importance of guarding against the influence of such bias on decision-making, including juror instructions, juror pledges and other strategies.12 The WDWA video was a significant development in the field of addressing implicit bias among jurors. Since its release, it has been featured in over 100 legal trainings, and at least two states — New York and Connecticut — have developed their own implicit bias video for jurors.13
The WDWA Video Inspires
After Robinson’s NC REN presentation, several attorneys began filing motions in North Carolina cases seeking to have the WDWA video shown to potential jurors during jury orientation. In counties across the state, many of these motions were granted. The WDWA video was first shown to jurors in Wake County Superior Court and has since been shown to jurors in several other courthouses. In late 2019, Buncombe County Senior Resident Superior Court Judge Alan Thornburg created a modified version of the WDWA video for use in Buncombe County jury orientation. While the limited available research suggests that the WDWA video is an effective tool that is now used in many courthouses around the country and has been well received by jurors, in 2020, several North Carolina stakeholders expressed interest in developing a “home grown,” updated and evidence-based version of the video.
In 2020, in response to that growing interest, a Video Advisory Group came together to assist in the development of this video. Guided by the advice of U.S. District Court Judge Richard Jones and made possible through the support of Z. Smith Reynolds Foundation funding, our group included a wide variety of different judicial system stakeholders.14 Together, we met with implicit bias experts, read numerous implicit bias studies and reports on the efficacy of various strategies for addressing implicit bias, formed relationships with each other and heard each other’s perspectives on the influence of bias on legal proceedings and began to develop the content for Understanding and Countering Bias. We received the blessing of the WDWA video stewards to borrow content from the original video as we fine-tuned our own. When we had a draft of the video content, we solicited feedback from implicit bias experts, prosecutors, defense attorneys, judges and civil attorneys, all of which was incorporated into the final script. In late 2021 and early 2022, the UNC Judicial College finalized the video with the help of videographer Random Gott and featured speakers Judge Linda McGee (retired), UNC School of Government professor Jim Drennan and law professor Kami Chavis. It is now available on the UNC Judicial College website for use in courtrooms across the state.
In September 2022, Mecklenburg County became the first county in the state to begin screening the video to all potential jurors as a routine matter during jury selection. Judges in other judicial districts have granted motions to show the video in individual cases. If you’d like jurors in your jurisdiction to see the video as part of their juror orientation, you may consider either bringing the suggestion to your local judicial district executive council or filing a motion requesting the screening of the video.15
Video Goals and Next Steps
No implicit bias educational tool will succeed in curing people of biases developed over a lifetime.16 Given the durability of our automatic associations, what are the goals of a video such as Understanding and Countering Bias? The first goal is awareness. Research shows that awareness of our own biases is a necessary precondition to guarding against the influence of those biases.17 The second goal is normalizing the discussion of sensitive topics such as bias and race. Where such topics are brought to the forefront of the conversation, researchers have found that the influence of bias may decrease.18 The third is to offer concrete, evidence-based strategies to jurors who are motivated to resist the influence of bias on their own decision-making, and to invite jurors into the project of ensuring that our jury system adheres to the constitutional ideals of fairness, impartiality and equal justice under law.
The development of tools to address implicit bias is still in its infancy. For this reason, many have expressed interest in studying the impact of this tool on juror decision-making. Hopefully, in the coming years, as more judicial districts incorporate this video into their juror orientation programs, we will have more opportunities to learn about the effectiveness of this video as a tool to mitigate the risk that implicit bias poses to the fairness and impartiality of our legal system.
1 Read more about Jeffery Robinson here: www.bc.edu/bc-web/schools/law/academics-faculty/faculty-directory/jeffery-robinson.html.
2 See, e.g., Pena-Rodriguez v. Colorado, 580 U.S. 206, 213 (2017) (jury returned a guilty verdict following deliberations during which one juror stated, “I think he did it because he’s Mexican,” and concluded that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls”).
3 Gawronski, Six Lessons for a Cogent Science of Implicit Bias and Its Criticism, 14 PERSPECTIVES ON PSYCHOLOGICAL SCIENCE, 574–595 (2019).
4 See Unconscious Bias Juror Video, U.S. District Court for the Western District of Washington, available at www.wawd.uscourts.gov/jury/unconscious-bias (last checked Dec. 9, 2022).
5 See Understanding and Countering Bias, UNC School of Government Judicial College, available at www.sog.unc.edu/resources/microsites/north-carolina-judicial-college/understanding-and-countering-bias (last checked Dec. 9, 2022).
6 Greenwald, Banaji & Nosek, Statistically Small Effects of the Implicit Association Test Can Have Societally Large Effects, 108(4) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, 553–561 (2015).
7 J. Elek & A. Miller, The Evolving Science on Implicit Bias: An Updated Resource for the State Court Community, National Center for State Courts, 2 (March 2021). In the scientific community, the term “unconscious bias” is disfavored, because in the scientific field of implicit social cognition, measurements of automatic associations generally do not reveal the subject’s awareness of these biases. In other words, when an association (for example, between women and weakness, or between Blackness and criminality) is automatic, we may or may not be aware that we hold it.
8 P.A. Goff, J. Eberhardt, M. Williams, and M.C. Jackson, Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94(2) JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, 2008, 292–306.
9 Transforming Perception: Black Men and Boys, Executive Summary, The Perception Institute, 8 (2014).
10 See, e.g., Rachlinski, J., Johnson, S., Wistrich, A., & Guthrie, C., Does Unconscious Racial Bias Affect Trial Judges? 84 NOTRE DAME LAW REVIEW 1195–1246 (2009); Girvan, E., Deason, G., & Borgida, E., The Generalizability of Gender Bias: Testing the Effects of Contextual, Explicit, and Implicit Sexism on Labor Arbitration Decisions, 39(5) LAW AND HUMAN BEHAVIOR, 525–537 (2015); Correll, J., Park, B., Judd, C., Wittenbrink, B., Sadler, M.S., & Keesee, T., Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot, 92 JOURNAL OF PERSONALITY AND SOCIAL PSYCHOLOGY, 1006–1023 (2007); Plant, E.A., & Peruche, B.M., The Consequences of Race for Police Officers’ Responses to Criminal Suspects, 16 PSYCHOLOGICAL SCIENCE, 180–183 (2005); Green, A.R., Carney, D.R., Pallin, D.J., Ngo, L.H., Raymond, K.L., Iezzoni, L., & Banaji, M., Implicit Bias Among Physicians and Its Prediction of Thrombolysis Decisions for Black and White Patients, 22 JOURNAL OF GENERAL INTERNAL MEDICINE, 1231–1238 (2007); BENSON, T., & FIARMAN, S., UNCONSCIOUS BIAS IN SCHOOLS: A DEVELOPMENTAL APPROACH TO EXPLORING RACE AND RACISM. Cambridge, MA: Harvard Education Press (2020).
11 See, e.g., Hon. Kenneth V. Desmond Jr., The Road to Race and Implicit Bias Eradication, BOSTON B.J., Summer 2016, at 3 (“Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors.”); see also Pena-Rodriguez v. Colorado, 580 U.S. 206, 248 (2017) (reviewing strategies for addressing juror bias more generally and observing that “while voir dire is not a magic cure [for addressing juror bias], there are good reasons to think that it is a valuable tool.”) (Alito, J., dissenting).
12 The North Carolina Governor’s Task Force for Racial Equity in Criminal Justice, as part of its recommendation to provide implicit bias education